This is Legal-mail no. 2017-13 prepared for interested HR professionals trying to deal with the complex American employment laws.

CONTENTS:

- FEDERAL AGENCIES TAKE OPPOSITE STANCES ON TRANSGENDER BIAS

- EEOC/DOJ ALSO TAKE OPPOSITE VIEWS IN SEXUAL ORIENTATION DISPUTE

- EMPLOYER UNDER SCRUTINY FOR AUTOMATIC LUNCH PAY DEDUCTIONS

- SALARY HISTORY INQUIRY BANS ARE GROWING

- RECENT HR LAWSUITS AND SETTLEMENTS

FEDERAL AGENCIES TAKE OPPOSITE STANCES ON TRANSGENDER BIAS: Conflicts on applicable legal rules continue to erupt in the administration of President Donald Trump. In early October of 2017, Attorney General Jeff Sessions issued a memo to all United States Department of Justice (DOJ) employees stating that the federal law prohibiting discrimination “does not encompass discrimination based on gender identity per se, including transgender status.” See the AG’s full statement here: https://www.documentcloud.org/documents/4067437-Sessions-memo-reversing-gender-identity-civil.html. Yet, as of the publication day of this update, the federal Equal Employment Opportunity Commission (EEOC) continues to post this statement: “Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.” See: https://www.eeoc.gov/laws/types/sex.cfm. So far, the EEOC is declining to comment on Attorney General Sessions’ memo. Is it any wonder that employers struggle to understand and comply with the American employment laws? Unless state law prohibits job discrimination based on gender identity (which is true in Utah and a number of other states), employers are going to have to consult with their legal counsel and take a wait and see approach to determine their compliance obligations on this issue.

EEOC/DOJ ALSO TAKE OPPOSITE VIEWS IN SEXUAL ORIENTATION DISPUTE: As noted in an update a few months ago, the EEOC and DOJ, two of the key federal agencies charged with national employment law compliance, also are taking opposite views on the question of whether current law prohibits job discrimination on the basis of sexual orientation. The case is pending in the Second Circuit Court of Appeals, which covers the states of Connecticut, New York, and Vermont. EEOC says the existing law prohibiting sex discrimination includes sexual orientation, DOJ says it does not. DOJ’s brief even slaps down the EEOC with this comment: “Although the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers ... the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” Dozens of national companies, such as Google, Microsoft and Viacom, have agreed with the EEOC’s view and urged the court to provide the protection. The case likely will be resolved sometime in the fall or winter of 2017/2018. Remember that Utah state law (and the laws of about half of the states) already expressly prohibit job bias based on sexual orientation.

EMPLOYER UNDER SCRUTINY FOR AUTOMATIC LUNCH PAY DEDUCTIONS: According to recent news reports, a Utah employer is having to answer a complaint made to the United States Department of Labor (DOL) that an employer illegally automatically deducted a half hour of lunch time from employee pay even though the same employees were not routinely taking lunch. See: http://www.sltrib.com/news/business/2017/09/19/feds-investigating-utahs-intermountain-healthcare-over-automatic-pay-deductions-for-nurses/. The charge alleges that under the federal Fair Labor Standards Act (FLSA), employees who worked through lunch were not properly paid for such time. DOL’s FLSA regulations treat meal periods as paid worktime unless an employee is completely relieved from duty during the meal period. DOL will investigate the employer involved in this matter and make a determination of whether or not the practice at issue violated FLSA. If you make any automatic deductions such as this one from employee pay, be sure you have vetted the practice with your employment law attorney.

SALARY HISTORY INQUIRY BANS ARE GROWING: An increasing number of state and local governments are banning employers from asking applicants and prospective employees about their past salary histories. Utah has not yet taken this step, but the following jurisdictions are examples of some who have done so: Delaware, Massachusetts, Oregon, Philadelphia, San Francisco, and New York City. Newspaper accounts of these bans indicate their purpose is to try to create a more level playing field in the job market for woman and minorities subjected to historic pay discrimination. Courts have reached differing conclusions on whether such inquiries are inappropriate. Employers who recruit nationwide may want to consider not making such inquiries, but if such information is requested, employers should ensure it is done for legitimate business reasons and only in jurisdictions that do not prohibit it.

RECENT HR LAWSUITS AND SETTLEMENTS: There have been some interesting recent HR lawsuits and settlements. The EEOC is suing a national car rental company for disability discrimination. The EEOC alleges the employer refused to hire the most qualified applicant for a job because he walked with a cane. The EEOC also has sued a Colorado automotive service shop for transgender bias (see related discussion above). The lawsuit alleges that the employer refused to hire a male applicant because that person had previously identified his assigned gender at birth as female. A convenience store recently agreed to pay almost id="mce_marker" million to settle an EEOC lawsuit claiming that the employer had discriminated against several pregnant employees and refused to accommodate their pregnancy-related conditions by providing such assistance as leaves and modified work procedures.

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator. He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers. HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.